Lindsey et al v. Matayoshi et al
ORDER DENYING DEFENDANTS' PAT BERGIN, ALLYSON TAMURA AND KEOMAILANI CASE, IN THEIR INDIVIDUAL CAPACITIES, MOTION TO DISMISS COMPLAINT FILED NOVEMBER 28, 2011 25 ; 38 - Signed by JUDGE J. MICHAEL SEABRIGHT on 5/9/12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HEATHER LINDSEY and GEREMY
K. LOPEZ, individually and as
Guardians Ad Litem for RFL, their
KATHRYN S. MATAYOSHI in her
official capacity as State Superintendent, )
Department of Education; KANU O KA )
‘AINA NEW CENTURY PUBLIC
CHARTER SCHOOL; PAT BERGIN; )
ALLYSON TAMURA; KEOMAILANI )
CASE; JOHN and/or DOES 1-20; DOE )
CORPORATIONS 1-10; DOE NON- )
PROFIT CORPORATIONS 1-10; and )
DOE GOVERNMENTAL ENTITIES 1- )
CIVIL NO. 11-00713 JMS/KSC
ORDER DENYING DEFENDANTS’
PAT BERGIN, ALLYSON
TAMURA, AND KEOMAILANI
CASE, in their individual capacities,
MOTION TO DISMISS
COMPLAINT FILED NOVEMBER
ORDER DENYING DEFENDANTS’ PAT BERGIN, ALLYSON TAMURA,
AND KEOMAILANI CASE, in their individual capacities, MOTION TO
DISMISS COMPLAINT FILED NOVEMBER 28, 2011
On November 28, 2011, Plaintiffs Heather Lindsey and Geremy K.
Lopez, individually and as guardians ad litem for RFL, their minor daughter,
(collectively, “Plaintiffs”), filed this action against Kathryn S. Matayoshi in her
official capacity as State Superintendent, Department of Education (“Matayoshi”);
Kanu O Ka ‘Aina New Century Public Charter School (“Kanu”); and Pat Bergin
(“Bergin”), Allyson Tamura (“Tamura”), and Keomailani Case (“Case”) in their
official and individual capacities, (collectively, “Defendants”). RFL was
suspended and later expelled from Kanu, a public charter school on the Big Island,
and Plaintiffs assert, among other things, that RFL’s expulsion violates their due
process rights pursuant to the United States and State of Hawaii Constitutions.
Currently before the court is Defendants Bergin, Tamura, and Case’s
Motion to Dismiss, in which they argue that Plaintiffs’ due process claims fail and
that the court should decline supplemental jurisdiction over Plaintiffs’ remaining
state law claims. All other Defendants join in this Motion. Doc. No. 38. Based on
the following, the court finds that the Complaint states a valid due process claim
that Defendants denied RFL an education without adequate process and therefore
DENIES Defendants’ Motion to Dismiss.
As alleged in the Complaint, on August 4, 2011, Plaintiffs enrolled
their fourteen-year-old daughter RFL at Kanu.1 Doc. No. 1, Compl. ¶ 11. Up until
As a charter school, Kanu has been given “the flexibility and independent authority to
October 18, 2011, RFL was successfully completing all of her assignments,
receiving acceptable grades, following directions well, and demonstrating “an
exceptional attitude,” as stated in reports by Kanu to Plaintiffs. Id. ¶ 12.
On October 18, 2011, RFL got into an altercation with a female
schoolmate in which each girl struck the other a single time before they were
separated and taken to Kanu’s administrative office. Id. ¶ 13. Heather Lindsey
was notified of the altercation and informed that RFL would be suspended for two
days. Id. ¶ 14. On October 19, 2011, however, Tamura informed Plaintiffs that
RFL “is not a good fit” with Kanu such that RFL would not be permitted to return
to Kanu. Id. ¶ 15.
Kanu did not offer or conduct any hearing or provide any written
notices or explanations of their determination that RFL could not return to Kanu.
Id. ¶ 16. Plaintiffs subsequently attended a meeting of the Kanu school board at
which they expressed their concerns and requested that RFL be permitted to return
to Kanu. Id. ¶ 17. On November 5, 2011, Plaintiffs received an e-mail from Kanu
implement alternative frameworks with regard to curriculum, facilities management,
instructional approach, virtual education, length of the school day, week, or year, and personnel
management.” Hawaii Revised Statutes (“HRS”) § 302 B-1. Although governed by a local
school board that is the autonomous governing body of Kanu, id. § 302B-7(c), the Hawaii
Department of Education still maintains responsibility for providing a free appropriate public
education. HRS § 302B-15.
informing them that the school board had upheld the decisions of Kanu’s
administrators to suspend RFL and prevent her from returning to school. Id. ¶ 18.
As of the date of the November 28, 2011 Complaint, RFL had been
out of school and denied any and all educational services since the October 18,
2011 altercation. Id. ¶ 19.
On November 28, 2011, Plaintiffs filed their Complaint against
Defendants asserting claims for violation of their due process rights pursuant to the
United States and Hawaii state constitutions, and state law claims for intentional
infliction of emotional distress and negligence.
On March 5, 2012, Defendants filed their Motion to Dismiss.
Plaintiffs filed an Opposition on April 23, 2012, and Defendants filed a Reply on
May 1, 2012. Pursuant to Local Rule 7.2(d), the court determines the Motion to
Dismiss without a hearing.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
a claim for “failure to state a claim upon which relief can be granted[.]”
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans Affairs,
521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must accept as
true all of the allegations contained in the complaint -- “is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not
simply recite the elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to enable the opposing party
to defend itself effectively.”).
Rather, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). In other words, “the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such that it is not unfair to
require the opposing party to be subjected to the expense of discovery and
continued litigation.” Starr, 652 F.3d at 1216. Factual allegations that only permit
the court to infer “the mere possibility of misconduct” do not show that the pleader
is entitled to relief as required by Rule 8. Iqbal, 556 U.S. at 679.
The parties dispute whether Plaintiffs have asserted a legally
cognizable due process violation based on RFL’s expulsion from Kanu.2 “A
procedural due process claim has two elements: deprivation of a constitutionallyprotected liberty or property interest, and denial of adequate procedural
protection.” Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ.,
616 F.3d 963, 970 (9th Cir. 2010) (citing Brewster v. Bd. of Educ. of the Lynwood
Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998)). Defendants argue that
neither element of Plaintiffs’ due process claim is met because RFL was not denied
any protected interest in her public education and in any event, the procedure
provided for her expulsion was adequate. The court addresses these arguments in
The parties’ briefing shows some dispute as to the scope of Plaintiffs’ constitutional
claims. Defendants originally argued that Plaintiffs cannot state a due process claim based on
RFL’s two-day suspension, but Plaintiffs clarified in their Opposition that their due process
claim is limited to RFL’s expulsion only. Also in their Opposition, however, Plaintiffs assert
that the facts alleged in the Complaint establish an equal protection claim. Although Defendants
address the viability of such claim in their Reply, the Complaint does not include an equal
protection claim. If Plaintiffs wish to assert an equal protection claim, they can seek to file an
Amended Complaint. The court therefore limits its analysis to the sole federal claim in the
Complaint -- whether the Complaint asserts a due process violation based on RFL’s expulsion.
Whether the Complaint Asserts that RFL Was Denied a Protected
In general, Hawaii students have a protected interest in their public
education. “Property interests are not created by the Constitution, ‘they are created
and their dimensions are defined by existing rules or understandings that stem from
an independent source such as state law . . . .’” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538 (1985) (quoting Bd. of Regents v. Roth, 408 U.S.
564, 577 (1972)). Because the State of Hawaii provides schooling for all children
between the ages of six and eighteen, see Hawaii Revised Statutes (“HRS”)
§ 302A-1132, RFL has a property interest in her education. See, e.g., Goss v.
Lopez, 419 U.S. 565, 574 (1975) (holding that a student has a property interest in
her education where Ohio created free education for residents between the ages of
five and twenty-one).
Although the Ninth Circuit has not addressed the precise issue
presented in this action, other courts have held that an entitlement to public
education does not include the right to attend a particular school. Specifically, “a
student who is removed from her regular public school, but is given access to an
alternative education program, has not been denied her entitlement to public
education.” Swindle v. Livingston Parish Sch. Bd., 655 F.3d 386, 394 (5th Cir.
2011); Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 690 (5th
Cir. 2011) (“[A] student’s transfer [from her regular school] to an alternative
education program does not deny access to public education, and therefore does
not violate the Fourteenth Amendment interest.”); Buchanan v. City of Bolivar,
Tenn., 99 F.3d 1352, 1359 (6th Cir. 1996) (explaining that the student “may not
have procedural due process rights to notice and an opportunity to be heard when
the sanction imposed is attendance at an alternative school absent some showing
that the education received at the alternative school is significantly different from
or inferior to that received at his regular public school”); Zamora v. Pomeroy, 639
F.2d 662, 669-70 (10th Cir. 1981) (determining no due process violation where
student was transferred to different school, resulting in no deprivation of education
to student); see also C.B. By and Through Breeding v. Driscoll, 82 F.3d 383, 389
n.5 (11th Cir. 1996) (expressing “doubt” as to whether student has a property
interest in attending one school as opposed to the one he was assigned).
Defendants argue that this caselaw applies in this action to bar
Plaintiffs’ due process claim because they offered RFL other educational
opportunities outside of Kanu. The Complaint, however, includes no allegations
that RFL was offered alternative education. Indeed, the Complaint asserts that as
of the date of its filing, “RFL has been and continues to be out of school and has
been denied a public education and any and all educational services for a
prolonged and indefinite period of time.” Doc. No. 1, Compl. ¶ 19. Taking this
allegation as true, the Complaint asserts a valid due process violation -- that RFL
was denied a public education (at least for a certain period of time).
Attempting to get past the allegations of the Complaint, Defendants
request the court to take judicial notice of correspondence between Kanu and
Plaintiffs’ counsel offering to facilitate RFL’s transfer to another public school.
See Doc. No. 25-1, Defs.’ Mot. at 3-4, n.1. Specifically, after this action was filed,
Kanu asserted in a February 1, 2012 letter that it “continues to stand ready and
available to facilitate [RFL’s] transfer to her geographic home school . . . .” Doc.
No. 25-3, Defs.’ Ex. A. This letter does not support dismissal of Plaintiffs’ due
process claims at this stage of the proceedings for several reasons.
As an initial matter, the court cannot consider the February 1, 2012
letter on a Rule 12(b)(6) motion. On a Rule 12(b)(6) motion, the court may
consider: (1) the complaint, documents whose contents are alleged in or attached to
the complaint and whose authenticity no party questions, and the pleadings of the
action, see Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other
grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); (2)
documents not attached to the complaint, but whose authenticity is not in question,
and upon which the complaint necessarily relies, or which it incorporates by
reference, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and
(3) documents and materials of which the court may take judicial notice, see
Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
The February 1, 2012 letter does not fit into any of these categories.
The Complaint includes no exhibits and does not refer and/or rely on the February
1, 2012 letter (and indeed, the Complaint could not have included this letter given
that it is dated after the Complaint). Further, even though Plaintiffs submitted the
February 1, 2012 letter as an exhibit to their Motions for Temporary Restraining
Order (subsequently withdrawn without prejudice), motions and their exhibits are
not pleadings. See Fed. R. Civ. P. 7 (defining “pleadings” as opposed to “motions
and other papers”). Finally, the February 1, 2012 letter on its own is not subject to
judicial notice. Facts are subject to judicial notice only if they are either “generally
known” or “capable of accurate and ready determination by resort to sources
whose accuracy cannot be reasonably questioned.” Fed. R. Evid. 201(b). That
Plaintiffs previously submitted this letter to the court does not establish that it can
be readily confirmed by indisputably accurate sources.
Further, even if the court did consider the February 1, 2012 letter (and
converted the Motion to Dismiss into one for summary judgment), there is still a
genuine issue of material fact whether RFL was provided an education.
Specifically, the caselaw discussed above addresses the lack of a due process
violation where a student is transferred from one school to another; it does not
address the situation presented here where a student is not provided any education
for several months. As a result, open questions remain that cannot be resolved at
this time and based on the briefing provided by the parties -- i.e., whether
Defendants violated RFL’s due process rights when RFL was expelled from Kanu
and was not provided alternative education for several months.
Whether Plaintiffs Were Provided Adequate Procedure
Defendants further argue that even if RFL was deprived a property
right, the Complaint admits that Plaintiffs were provided a hearing such that there
is no due process violation. Although it is true that the Complaint asserts that
“Plaintiffs attended a meeting of the Kanu school board chaired by Defendant Case
at which they expressed their concerns about [RFL’s] expulsion,” Doc. No. 1,
Compl. ¶ 17, this meeting occurred after the expulsion decision and the details of
this meeting are too vague for the court to determine whether it provided them due
process.3 See Black Coal. v. Portland Sch. Dist. No. 1, 484 F.2d 1040, 1045 (9th
Plaintiffs argue that the procedure provided did not comply with the procedural
requirements outlined in the Hawaii Administrative Rules (“HAR”). Because Kanu is a charter
school, the HAR may not apply to it. See HRS § 302B-9(a) (providing that “[c]harter schools
shall be exempt from chapters 91 and 92 and all other state laws in conflict with this chapter
. . . .”). At this time, however, the court need not determine the precise procedure Defendants
Cir. 1973) (stating that expulsion procedures are unconstitutional if they fail “to
provide a hearing at which the student could be represented by counsel and,
through counsel, present witnesses on his own behalf, and crossexamine adverse
witnesses”); see also Goss, 419 U.S. at 584 (“Longer suspensions or expulsions for
the remainder of the school term, or permanently, may require more formal
procedures.”); Remer v. Burlington Area Sch. Dist., 286 F.2d 1007, 1012 (7th Cir.
2002) (explaining that “when a penalty that is ‘tantamount to expulsion’ is
involved, the school authority must afford the student an opportunity to present
evidence and argument in mitigation” (citing Lamb v. Panhandle Community Unit
Sch. Dist. No. 2, 826 F.2d 526 (7th Cir. 1987))). The court therefore DENIES
Defendants’ Motion to Dismiss.
For the reasons stated above, the court DENIES Defendants’ Motion
to Dismiss. Plaintiffs’ claims for violation of their due process rights pursuant to
the United States and Hawaii state constitutions based on RFL’s expulsion from
Kanu, and state law claims for intentional infliction of emotional distress and
negligence, remain. Plaintiffs are not, however, asserting a due process claim
were required to follow to expel RFL, or whether the procedures provided were sufficient.
based on RFL’s two-day suspension and the Complaint does not assert an equal
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 9, 2012.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Lindsey et al. v. Matayoshi et al., Civ. No. 11-00713 JMS/KSC, Order Denying Defendants’ Pat
Bergin, Allyson Tamura, and Keomailani Case, in their individual capacities, Motion to Dismiss
Complaint Filed November 28, 2011
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?